Foundation of Business Law - Facebook Investments - Assignment Example

FOUNDATION OF BUSINESS LAW: “FACEBOOK INVESTMENTS” Prepared by Student’s Name Professor’s Name Course Name 22nd September 2012 Foundation of Business Law: “Facebook Investments” Kosmo’s Case: Issue: Whether there is any form of legal action that could taken by Kosmo against Gerry, Financial Advisor: Law: It is a fact within a legal context that before an agreement is termed binding to both parties involved there should be an initial consent between the aforesaid parties that depict an intention to accept legal responsibility and thus, legal relations in that matter: Australia Federation of Consumer Organizations Inc v Tobacco Institute of Australia Ltd [1991], 982 It has to be determined that both parties either implied or expressed reached a consensus. Basically, a consensus refers to a situation through which two or more minds meet: Carlic v Carbolic Smoke Ball Co[1893],335 Within a legal environment, it is postulated that when two or more minds are brought together a declaration is meet that stipulates a contract to responsibility: Carlic v Carbolic Smoke Ball Co[1893],335 However, the legality of the matter is put under immense scrutiny since ambiguity can bar sound judgment. In that case, it is established that meeting of minds is only proven whenever there is an offer made by an offeror to an offeree and that the offeree accepted the offer at hand: Carlic v Carbolic Smoke Ball Co[1893],335 In this case, however, this cannot be proved since Gerry and Kosmo have no form of relationship at all and since the suggestion to purchase Facebook shares happened between him and George, there was in no way “meeting of minds” between the two: Rose & Frank Co V Compton & Bros Ltd[1925] AC 445(‘Rose & Frank’),Master v Cameron(1954) 91 CLR 353 In this case, it should also be noted that there was no situation permitting a rebuttable presumption which could exclude consequences brought forth within a legal context: Rose & Frank Co V Compton & Bros Ltd[1925] AC 445(‘Rose & Frank’),Master v Cameron(1954) 91 CLR 353 In a contract there are always a set of terms to be established as well as agreed upon as in a case of contract and some conditions needed to bring forth a legal environment responsibility. Winn v Bull (1877) 47 LJCh 139(‘Winn’), Mater v Cameron (1954) 91 CLR 353. In this case, there are no terms as well as conditions which are fulfilled and thus, a legal responsibility cannot be brought forth by Kosmo against Gerry: Australia Federation of Consumer Organizations Inc v Tobacco Institute of Australia Ltd [1991], 982 It is a point worth mentioning that for a contract to be termed as “executory” there must be a promise made by one party and another by the other party to an agreement. For instance, in case, during the conversation, both Kosmo and George agreed to purchase the shares, it would have been perceived that George’ intention to a binding contract was made formal even though not in writing: Commercial and General Acceptance Ltd v Nixon[1981],868 Instead, Kosmo acted on his own behalf without consent and went ahead to purchase the shares. Should he have consulted Gerry first, the case would have been different since a meeting of minds will have occurred and that is sufficient enough to bring forth a legal responsibility to Gerry since he is an expert on the field and by him providing a legal consultation meant that he is obliged to full professional responsibility: Australia Federation of Consumer Organizations Inc v Tobacco Institute of Australia Ltd [1991], 982 A consideration between two parties is considered detrimental especially because of the legal responsibility which is expected to suffice later due to “double promise”. Carlic v Carbolic Smoke Ball Co[1893],335 Application: In this case there is no legal binding between Gerry and Kosmo since there is no point in time for which the two parties put forth a formal agreement. In addition, the two do not have a professional relationship. A legal professional contract is binding and the consultant is made liable in that matter. It is a fact that there is no legal action which could be brought to court on such a happening since the whole phenomenon does not, in any way, conform to the law necessary for binding an agreement between a claimant and defendant. Conclusion: There is no likelihood that Gerry and Kosmo could have a binding contract. For contracts to occur there must, at least, be a word of mouth or a formal agreement in writing to take full responsibility. Case 2: Issue: whether Newman had an opportunity to bring legal action against Kosmo’s breach for duty of care. Law: Newman has a legal action score to settle with Kosmo which arises out of duty of care. “Duty of care” stipulates that a defendant is placed at fair position upon which he or she owes the plaintiff ‘duty of care’ brought forth under 2 conditions. Firstly, the defendant owes a duty of care to the plaintiff whenever it is predictable that his or her conduct could injure the claimant: Donogue v Stevenson [1932] AC 562; Hay v Young [1943] AC 92. Secondly, the duty of care is owed by the defendant to the claimant whenever it is figured out that the claimant is subjected to vulnerable circumstances or conditions in that matter: Jensch v Coffey[1984] 155 CLR 549;Perre v Apand Pty Ltd[1999] 73 AUR 1190 It is further stipulated that a defendant breaches the “duty of care” whenever it is established that defendant actions were performed in contrary to normal expectations, that is to say, that the defendant is expected to conduct his or her actions to befit that which is expected from another sound person under a similar environment: Civil Liability Act 1936(SA0; Boulton v Stone [1951] AC 850; Paris v Stepney Borough Council [1951] AC 367. The defendant is perceived to be responsible for the harm caused as a result of breach of care whenever it is established that: Were it not for the defendant actions then the harm could not have occurred:34(1)(a) 35 Civil Liability Act(SA);Chappell v Hart{1998] 195 CLR 232 The harm caused is reasonably predictable to be not remote of far-fetched in that matter: Overseas Tankship(UK)Ltd v Morts Dock& Engineering Co.Ltd;The Wagon Mound(No 1) {1961} AC 388 In a bid to determine the harm caused, the magnitude of the harm is measured in respect to its severity: CLA s32 (2) (b); Paris v Stepney Borough Council [1951] AC 367(‘Paris’). Whenever it is established that the claimant did in fact contribute to their own harm, the case is developed to a ‘contributory negligence’ case since the defendant is partially relieved of the liability he or she was expected to endure: Coonors v Western Australian Government Railways Commission[1992] Aust Torts Rep 81-187( Connor’s) Application: Duty Care, It is safe to indicate that Kosmo had the duty of care to Newman. This is because of the fact that he took no caution to close the door gently knowing very well that Newman, his neighbor, was behind him. He Kosmo might have acted on anger and without reasonable care caused immense harm to the claimant. However, it is also fair to indicate that the claimant acted towards the harm and indeed contributed to the harm altogether. There was contributory negligence between the two parties. And the legality of the matter calls for shared liability. That said, it is fair for the court to allow Kosmo be liable for a half of the liability and be penalized half of the amount to $ 20,000. Breach of Duty of Care: It is safe to postulate that Kosmo could have gone ahead and perceive the possibility of him harming his neighbor as well as the probability of the seriousness of the harm at hand were it to occur. A sound mind calls for gentle closing of the door behind rather than slamming and therefore, before slamming the door it is reasonable to indicate that he could have perceived the possibility of someone following him out. It is not normal for a person to act in the way Kosmo did since it amounts to malice which caused tremendous harm. Damage Caused as a result of Breach of Duty of Care: Due to negligence on the part of Kosmo, it is safe to indicate that serious harm was caused to Newman both financially and psychologically. On the other hand, it is fair to postulate that Newman contributed to his own harm since he too was rushing out and as a result got injured. In that case, a contributory negligence is to be applied in which the defendant is partially relieved of the liability caused and instead that liability is transferred to the claimant for his part on the harm caused. Defenses: It is reasonably clear to indicate that Kosmo failed to foresee the harm which could be caused as a result of him slamming the door. As a person of sound mind Kosmo could have closed the door gently behind him since that is what is expected in such a scenario. Newman should also have walked out gently since that is what is expected from a person of sound mind. Conclusion: There is a high likelihood that Newman has a chance to take legal action against Kosmo for the lack of capacity to act in due care. On the other hand, Newman overlooked his responsibility to act in accordance with such scenarios and walked out gently. Had he not rushed out then he could not have suffered injury. References Baxt, F and Fridman, 2009. Corporations & Associations: Cases & Materials (10th Ed), Lexis Nexis Butterworts. Print Read More